Smt. Rekha Agal vs Lalit Agal

S.B. Sakrikar, J.—Appellant (petitioner has directed this appeal against the judgment and decree dated 5.7.2000 passed by 9th Additional District Judge, Indore in Hindu Marriage Case No. 397/1998 thereby dismissing the application filed on behalf of the appellant for grant of decree of divorce against the respondent under provisions of Section 13 of the Hindu Marriage Act (for short the Act).

On service of notice of final hearing of this appeal on the respondent and on his appearance an effort was made to reconcile between the parties. But due to difference existing between the parties, the reconciliation was not possible.

During the pendency of this appeal on 16.4.2001, the appellant and respondent jointly filed I.A. 1366/2001 under Order 23 Rule 3, C.P.C. and Section 13(b) of the Act and prayed for grant of decree of divorce on mutual consent as contemplated u/s 13(b) of the Act. The statement of both the parties have been recorded on the aforesaid application and on perusal of the statements it was found that the parties are not prepared to live together as husband and wife and they war'' dissolution of the marriage on consent.

In the application it is stated that the parties have agreed to dissolve their marriage and the parties have finally settled their dispute with regard to the properties and the exchange of the same has been completed. Now the parties do not have any claim against each other. It is also agreed between the parties that the two children born to them as a result of marital relations between the parties namely Ku. Pal and Master Priyal, shall remain with the appellant and she will properly maintain and educate them. The appellant shall not claim any sum for their maintenance from the respondent. However, the respondent shall have the right to meet the children atleast once in two months with a pre-intimation to the appellant on any school holidays for four hours at a public place of the choice of respondent at a time in the place i.e. town or city where the children are then living. However, if both or any one of them is living in a hostel, then such meeting would be subject to the rules and permission of the hostel incharge. It is also agreed that the respondent if so desires, on his own expenses, may take any one or both children to his parental home for two days after the concerned child completes 16 years of age, in summer vacation of the institution in which they are studying and put them back. The parties by the application unequivocally withdrew their allegations made against each other.

From the statements of the parties it emerged that they are living separately since last four years and do not want to live together as husband and wife and they had no marital relations in the aforesaid period. In view of the facts and circumstances emerging from the statements of the parties, the application LA. 1366/2001 deserves to be allowed.

As the parties are living separately since last from years and ceased to have any marital relations, there appears no possibility of reconciliation between the parties. I do not consider it necessary to get this application pending for another six months as provided u/s 13(b)(2) of the Act.

Consequently the application filed on behalf of the parties u/s 13(b)(1) of the Act for decree of dissolution of marriage by mutual consent is allowed. The judgment and the decree of the Trial Court is set aside and the decree for dissolution of the marriage by mutual consent is passed under provisions of Section 13(b)(1) of the Act. The parties are left to bear their own costs of this appeal. Counsel fee of Rs. 500/- is fixed for each of the parties on certificate. A decree be drawn accordingly.